Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KEITH KNAPPETT and JUDY                     )
KNAPPETT, husband and wife,                 )       DIVISION ONE
                                            )
                      Respondents,          )       No. 65801-8-I
                                            )
                      v.                    )
                                            )       UNPUBLISHED OPINION
KING COUNTY METRO TRANSIT,                  )
                                            )
                      Appellant.            )       FILED: February 21, 2012
________________________________)

       Dwyer, C.J.  --  Keith Knappett sued King County (Metro) to recover 

damages for injuries that he sustained after slipping while exiting a county-
operated bus on a rainy day.1 At trial, Knappett introduced evidence that yellow 

nosing strips, located at the edges of the stairs of Metro buses, become

dangerously slippery when wet. At the conclusion of Knappett's case in chief, 

Metro moved for judgment as a matter of law based upon the lack of direct 

evidence that Knappett had stepped on a yellow nosing strip or that the strip was 

wet at the time of the incident. The trial court denied the motion, and the jury 

found that Metro's negligence was the sole cause of Knappett's injuries.

       1 Prior to 1994, the bus system was operated by the Municipality of Metropolitan Seattle, 
colloquially known as Metro.  In 1996, following the merger of Metro and King County, Metro's 
Transit Department became part of the county's new Department of Transportation. Thus, King 
County was the operator of the bus that Knappett was riding on the day that he sustained his 
injuries.  Although Metro no longer exists as an independent entity, for readability, we refer to 
King County as Metro throughout this opinion.   

No. 65801-8-I/2

       Following the verdict, a juror testified by declaration that he had tested the 

slipperiness of a yellow nosing strip while exiting a Metro bus on the last day of 

trial.  Although Metro knew that the court had provided bus passes to jurors for 

use during jury service, Metro moved for a new trial based on juror misconduct.  

The trial court denied the motion.  

       Metro appeals from both rulings.  Finding no error, we affirm.

                                            I

       On the morning of October 24, 2006, Keith Knappett was commuting from 

Bothell on a bus operated by Metro. It was raining heavily that day and the floor 

of the bus was covered with small puddles.  Knappett was the last passenger to 

exit the bus at his stop in downtown Seattle.  Knappett began to descend the 

stairs of the bus's rear exit, holding onto the hand rail as he did so.  As he

moved his right foot to the second step, Knappett slipped and fell.  The fall 

carried him out of the bus and onto the pavement below.  The bus pulled away, 

and Knappett called 911.  Medical personnel arrived at the scene shortly 

thereafter.  Knappett sustained a severe ankle injury as a result of the fall.  

       Knappett later commenced an action for personal injury damages against 

Metro.  At the jury trial that followed, Knappett testified regarding his 

recollections of the incident.  He introduced expert testimony indicating that the 

material covering the nosing of the stairs on Metro buses becomes dangerously 

slippery when wet.  The expert explained that the term "nosing" refers to the first 

                                          - 2 - 

No. 65801-8-I/3

two to three inches from the edge of each step. The expert further testified 

regarding the dynamics of descending stairs and the importance of a slip-

resistant surface on the nosing of the stairs.  Following the conclusion of 

Knappett's case in chief, Metro moved for judgment as a matter of law pursuant 

to Civil Rule 50.  Metro's motion was based upon the absence of evidence 

demonstrating a violation of a transit industry standard of care and the absence 

of any testimony indicating that the rear steps were wet or that Knappett actually 

contacted a yellow nosing strip while exiting the bus.  The trial court denied 

Metro's motion.  

       Metro called three witnesses.  Sergey Buryy, the driver who was 

operating the bus that Knappett was riding on the day of the incident, testified 

that he did not observe Knappett fall.  Michael Tanberg, the ambulance 

attendant who initially treated Knappett, testified that Knappett had reported 

tripping but not hitting the ground.  Anthony Miceli, one of the firefighters who 

responded to Knappett's 911 call, testified that Knappett had told him "that he 

slipped on the wet sidewalk and twisted his left ankle."  Report of Proceedings 

(RP) (May 20, 2010) at 28. In closing argument to the jury, Metro argued that 

the testimony of these witnesses indicated that Knappett had not sustained his 

injuries while exiting the bus.  

       The jury found that Metro's negligence was the sole cause of Knappett's 

injuries and awarded substantial money damages.  After the verdict was read,

                                          - 3 - 

No. 65801-8-I/4

the jurors met with counsel for both parties outside the courtroom.  One juror

stated that, when exiting a Metro bus on the last day of trial, he noticed that the 

yellow nosing on the bus stair was wet and slick.  Thereafter, the juror testified 

by declaration that he had "scuffed" his shoe across the yellow strip, and that a

second juror had described engaging in similar conduct.  However, there was no 

evidence that either juror's observations were discussed during deliberations.  

Metro brought a motion for new trial pursuant to Civil Rule 59 based on juror 

misconduct.  The trial court denied this motion.  

                                           II

       Metro first contends that the trial court erred by denying its motion for 

judgment as a matter of law because there was no direct evidence that Knappett 

stepped onto the yellow nosing strip or that the strip was actually wet at the time
of Knappett's fall.2  Because there was ample evidence adduced at trial to 

submit these questions to the jury, we disagree. 

       We review a motion for judgment as a matter of law de novo, applying the 

same legal standard as the trial court. Hill v. BCTI Income Fund -- I, 144 Wn.2d 

172, 187, 23 P.3d 440 (2001); Jacob's Meadow Owners Ass'n v. Plateau 44 II, 

LLC, 139 Wn. App. 743, 765 n.11, 162 P.3d 1153 (2007).  Such a motion admits 

the truth of the opponent's evidence and all inferences that can be reasonably 

       2 It was established at trial that only the yellow nosing strips presented an unreasonable 
danger to passengers and that these strips were only dangerously slippery when wet.  The 
majority of the bus's flooring was slip-resistant even when wet.  Thus, Knappett was required to 
prove both that he contacted a yellow nosing strip and that the strip was wet in order to 
demonstrate that Metro's negligent conduct was the proximate cause of his injuries.

                                          - 4 - 

No. 65801-8-I/5

drawn therefrom and requires the evidence to be interpreted most strongly 

against the moving party and in the light most favorable to the opponent.  Davis 

v. Early Constr. Co., 63 Wn.2d 252, 254-55, 386 P.2d 958 (1963).  The 

nonmoving party "'is entitled to have his case submitted to the jury on the basis 

of the evidence which is most favorable to his contention.'"  Schwab v. Dep't of 

Labor & Indus., 69 Wn.2d 111, 116, 417 P.2d 613 (1966) (quoting Mutti v. 

Boeing Aircraft Co., 25 Wn.2d 871, 877, 172 P.2d 249 (1946)).  Indeed, a motion 

for judgment as a matter of law "'can be granted only when it can be said, as a 

matter of law, that there is no competent and substantial evidence upon which 

the verdict can rest.'"  Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 

P.3d 250 (2001) (quoting State v. Hall, 74 Wn.2d 726, 727, 446 P.2d 323 

(1968)).

       Circumstantial evidence, of course, may be used to support a verdict.  

Arnold v. Sanstol, 43 Wn.2d 94, 99, 260 P.2d 327 (1953).  Circumstantial 

evidence is sufficient if the evidence '"affords room for [persons] of reasonable 

minds to conclude that there is a greater probability that the thing in question . . . 

happened in such a way as to fix liability upon the person charged therewith 

than it is that it happened in a way for which a person charged would not be 

liable."'  Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 829, 435 P.2d 

626 (1967) (quoting Gardner v. Seymour, 27 Wn.2d 802, 808-09, 180 P.2d 564 

(1947)).  "[A] verdict does not rest on speculation or conjecture when founded 

                                          - 5 - 

No. 65801-8-I/6

upon reasonable inferences drawn from circumstantial facts."  Douglas v. 

Freeman, 117 Wn.2d 242, 254-55, 814 P.2d 1160 (1991).  Accordingly, in this 

case, we must determine whether there was sufficient evidence -- either direct or 

circumstantial -- from which a reasonable jury could determine that the yellow 

nosing strip was wet and that Knappett actually stepped upon it prior to his fall.  

We have no difficulty concluding, as the trial court did, that the evidence was 

sufficient to submit these questions to the jury.

       At trial, Knappett testified that he had just begun to descend the stairs of 

the bus's rear exit when he fell.  Knappett told the jury that he recalled lifting his 

right foot prior to "flying through the air" and landing on the pavement.  RP (May 

24, 2010) at 117.  It was uncontested that a two-inch yellow strip of 

material -- known as "Nora" flooring -- extended along the edge of each step in 

the rear stairwell of the bus that Knappett was riding.  Accordingly, there was 

direct evidence that Knappett was in the area of the yellow nosing strip just prior 

to his fall. 

       As Metro correctly points out, Knappett did not testify regarding the

specific area of the step that his foot touched prior to slipping.  However, Dr. 

Gary Sloan, an expert in ergonomics and industrial engineering, explained the 

dynamics of descending stairs to the jury.  Dr. Sloan testified that "[w]hen we 

descend a flight of stairs, what we do is basically take our lead foot [and] move it 

over the nosing of the step below."  RP (May 20, 2010) at 103.  Dr. Sloan told 

                                          - 6 - 

No. 65801-8-I/7

the jury that it is "typically the case" that the ball of the foot "comes down on the 

edge of the step."  RP (May 20, 2010) at 106.  Dr. Sloan explained that where 

the surface of a step's nosing lacks adequate resistance to prevent movement of 

the ball of the foot, a person may "slip, oftentimes fall backwards, and be injured 

on the steps."  RP (May 20, 2010) at 106.  Given this testimony, a reasonable 

jury -- knowing that Knappett was descending the rear stairs of the bus and that a 

person typically contacts the edge of the steps while doing so -- could reasonably 

infer that Knappett had contacted the yellow nosing strip while exiting the bus.

       Moreover, the nature of Knappett's injuries was inconsistent with Metro's 

own theory of the case at trial.  Metro argued to the jury that the testimony of the 

medical personnel, as well as Knappett's own varying accounts of the incident, 

indicated that Knappett had slipped on the sidewalk and not while descending 

the stairs of the bus.  However, the orthopedic surgeon who treated Knappett, 

Dr. Alexis Falicov, testified that Knappett's injury was of a type "typically not 

encountered with normal walking-type injuries." Clerk's Papers (CP) at 249.  He 

identified the injury as a "pilon fracture," an injury that occurs when the talus 

bone of the ankle is driven upwards into the tibial plafond, shattering the weight-

bearing portion of the ankle joint.  CP at 249.  Dr. Falicov told the jury that, 

because a pilon fracture "requires a relatively high amount of force to shatter 

that bone," CP at 249, such an injury is generally inconsistent with "slipping on 

wet pavement." CP at 251.  Instead, Knappett's injury was better explained by a 

                                          - 7 - 

No. 65801-8-I/8

fall from a height in which Knappett "landed, did a direct axial load onto his tibia,

and essentially just exploded his weight-bearing surface of his tibia."  CP at 270-

71.  Given this testimony, it is clear that a reasonable jury could have 

determined that Knappett slipped while descending the stairs of the bus and not 

on the sidewalk.  

       Similarly, there was abundant circumstantial evidence that the yellow 

nosing strip was wet at the time of Knappett's fall.  Knappett testified that it was 

"pouring rain" at the time that he boarded the bus.  RP (May 24, 2010) at 11.  He 

described the floor of the bus as "wet" with "small puddles all over it."  RP (May 

24, 2010) at 12.  Knappett told the jury that he could not avoid the puddles as he 

moved down the aisle.  This water had been deposited by wet passengers 

"getting on and off [the bus]."  RP (May 24, 2010) at 12. Metro asserts that, 

because no passengers were permitted to enter the bus via the rear door until 

one block before Knappett exited, there was no opportunity for water to have

been tracked from the street to the rear steps.  However, this argument ignores 

the possibility that passengers may have tracked water from the floor of the bus 

to the rear steps as they exited the bus.  Although Knappett did not testify that 

he observed water on the stairs, given the prevailing conditions on the bus, a 

reasonable jury could have determined that it was more probable than not that 

the yellow nosing strips on the rear steps of the bus were wet when Knappett 

fell.  The trial court did not err by denying Metro's motion for judgment as a 

                                          - 8 - 

No. 65801-8-I/9

matter of law on the bases discussed.

                                           III

       Metro next contends that the trial court erred by denying its motion for 

judgment as a matter of law because Knappett failed to present sufficient 

evidence to demonstrate a breach of the applicable standard of care.  We 

disagree. 

       Negligence, of course, requires the breach of a duty owed to the plaintiff.  

Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 

(1991).  Metro's duty of care to Knappett is well-established -- "[a]s a common 

carrier of passengers, a bus system owes the highest degree of care toward its 

passengers commensurate with the practical operation of its services at the time 
and place in question."3  Price v. Kitsap Transit, 125 Wn.2d 456, 465, 886 P.2d 

556 (1994); Benjamin v. City of Seattle, 74 Wn.2d 832, 833, 447 P.2d 172 

(1968).  Here, the trial court properly instructed the jury that "[a] common carrier 

has a duty to its passengers to use the highest degree of care consistent with 

the practical operation of its type of transportation and its business as a common 

carrier."  CP at 124 (Jury Instruction 9). Metro does not contend, nor could it, 

that the trial court erred by instructing the jury as to this unremarkable standard.  

       Nevertheless, Metro asserts that because its duty of care does not 

include a duty to "keep the floors of its buses dry on a wet and rainy day," 

       3 Metro concedes, as it must, that it is a common carrier and that, because Knappett was 
a passenger, Metro owed Knappett this high duty of care.

                                          - 9 - 

No. 65801-8-I/10

Knappett failed to introduce evidence demonstrating the breach of an applicable

duty.  Br. of Appellant at 11.  In so asserting, Metro misapprehends both the 

scope of its duty as a common carrier and the evidence that may be used to 

demonstrate a breach of that duty. Of course, not every injury to a passenger 

constitutes a breach of duty by the carrier.  Metro is correct that a common 

carrier is not liable for injuries that are attributable to ordinary jolts and jerks that 

are necessarily incident to the carrier's mode of transportation.  Walker v. King 

County Metro, 126 Wn. App. 904, 908, 109 P.3d 836 (2005).  However, unlike 

ordinary jolts and jerks, dangerously slippery floors are not "necessarily incident" 

to the practical operation of Metro's services.  Walker, 126 Wn. App. at 908.  

Indeed, the evidence at trial established that the flooring of other areas of 

Metro's buses remained slip-resistant even when wet, demonstrating that such 

material was readily available at the time of Knappett's fall.  We have long held 

that a common carrier's duty to exercise the highest degree of care extends to '

"the selection, maintenance, inspection and use of its cars and their 

appliances."'  Leach v. Sch. Dist. No. 322 of Thurston County, 197 Wash. 384, 

387, 85 P.2d 666 (1938) (quoting Adduci v. Boston Elevated Ry. Co., 215 Mass. 

336, 337, 102 N.E. 315 (1913)).  A common carrier '"is bound to adopt approved 

appliances that are in general use and necessary for the safety of passengers.'"  

Leach, 197 Wash. at 388 (quoting Adduci, 215 Mass. at 337). Accordingly, if 

there was any evidence that Metro failed to exercise the highest degree of care 

                                         - 10 - 

No. 65801-8-I/11

in selecting, maintaining, or inspecting the material of its bus's flooring, the trial 

court was required to submit the question of negligence to the jury.  See

Peterson v. City of Seattle, 51 Wn.2d 187, 192, 316 P.2d 904 (1957).

       Here, the evidence presented at trial was sufficient to send the case to 

the jury.  Knappett's liability expert, Dr. Sloan, described to the jury several 

experiments that he conducted to test the coefficient of friction of both the yellow

nosing strips and the other areas of the bus's flooring.  Dr. Sloan's experiments 

revealed that, although the yellow Nora material was slip-resistant when dry, 

when wet, this material became as slippery as "compact snow."  RP (May 20, 

2010) at 156.  Dr. Sloan explained that, within the discipline of industrial design, 
this material would be considered "dangerously slippery."4  RP (May 20, 2010) at 

156.  This was in contrast to the majority of the bus's floor, which was composed 

of a different material than the nosing of the steps and remained slip-resistant 

even when wet.  Moreover, there was evidence that Metro had notice of the

danger that the yellow Nora material posed to its passengers.  Among the 45 

incident reports filed in the three years before Knappett's fall, Dr. Sloan 

identified nine falls where the passenger reported being injured while slipping on 
the rear stairs of a Metro bus.5 These falls all occurred when the stairs were wet 

with rainwater.  In each case, the same yellow Nora material had been utilized to 

       4 There was evidence that Metro's own specifications stipulated that all floor coverings 
on Metro buses be "non-skid" or slip-resistant.  Sloan testified that, to meet these specifications, 
the floor material must register a coefficient of friction of at least 0.5.  The yellow Nora material 
registered a coefficient of friction of less than 0.3 when wet.  
       5 This evidence was admitted for the purpose of demonstrating that Metro had notice of 
a dangerous condition on the stairs of the bus.  

                                         - 11 - 

No. 65801-8-I/12

cover the nosing of the rear stairs.  Nevertheless, Metro never tested the slip-

resistance of the yellow Nora material.  Given this testimony, a reasonable jury 

could conclude that Metro breached its duty as a common carrier in selecting, 

maintaining, and inspecting the material of its bus's flooring.  

       Not to be deterred, Metro asserts that, because Dr. Sloan is not an expert 

in the transit industry, he was not qualified to testify regarding Metro's breach of 

duty.  Metro appears to imply that a party must introduce expert testimony in 

order to demonstrate a breach of the common carrier standard of care.  Such 

testimony is, of course, not required.  The complaint in this case does not allege 

a statutory cause of action, such as one alleging medical malpractice, wherein a 

plaintiff must produce evidence of duty and breach through the testimony of an 

expert medical witness. See, e.g., RCW 7.70.040; Coggle v. Snow, 56 Wn. App. 

499, 510, 784 P.2d 554 (1990).  Similarly unavailing is Metro's contention that 

Knappett was required to demonstrate a violation of an industry standard in 

order to prove that Metro breached its duty of care.  Any industry standard not 

encompassed within the common carrier standard of care can only augment 

Metro's duties to its passengers.  The existence of any such transit industry 

standard could not reduce the degree of care owned by Metro to its passengers.  

Accordingly, Metro cannot escape liability on either of these bases.

       The evidence adduced at trial was sufficient to submit the issue of Metro's 

breach of duty to the jury.  Viewing the evidence in the light most favorable to 

                                         - 12 - 

No. 65801-8-I/13

Knappett, a reasonable jury could have concluded that Metro had failed to 

exercise the highest degree of care in the selection, maintenance, and 

inspection of the yellow Nora material on the stairs of its buses. The trial court 

properly denied Metro's motion for judgment as a matter of law.

                                           IV

       Metro next contends that the trial court erred by determining that, 

because Metro knew that jurors would encounter the yellow nosing strips during 

trial and had not contested that the strips were dangerously slippery when wet,

the jurors' conduct in independently testing the slipperiness of the strips did not 

constitute misconduct and did not objectively affect the jury's verdict.  

Accordingly, Metro asserts that the trial court abused its discretion by denying 

Metro's motion for a new trial.  We disagree. 

       The grant or denial of a new trial is a matter within the trial court's 

discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989).  A 

court abuses its discretion only when its decision is "'manifestly unreasonable, 

or exercised on untenable grounds, or for untenable reasons.'"  Breckenridge v. 

Valley Gen. Hosp., 150 Wn.2d 197, 203-04, 75 P.3d 944 (2003) (quoting State 

ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).  "We review a 

trial court's decision to deny a new trial for an abuse of discretion based on 'the 

oft repeated observation that the trial judge,' having 'seen and heard' the 

proceedings, 'is in a better position to evaluate and adjudge than can we from a 

                                         - 13 - 

No. 65801-8-I/14

cold, printed record.'"  State v. Perez-Valdez, 172 Wn.2d 808, 819, 265 P.3d 853 

(2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 

44, 52, 134 P.3d 221 (2006)).

       The test to determine whether a new trial is warranted due to juror 

misconduct is "first whether the alleged information actually constituted 

misconduct and, second, if misconduct did occur whether it affected the verdict."  

Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 

(1990).  Because the "'the free, frank and secret deliberation'" of the jury must 

generally be held sacrosanct, a strong, affirmative showing of juror misconduct is 

required in order to impeach a verdict.  Richards, 59 Wn. App. at 271 (quoting 

Ryan v. Westgard, 12 Wn. App. 500, 503, 530 P.2d 687 (1975)).  The abuse of 

discretion standard applies to both the trial court's determination of whether juror 

misconduct occurred and whether any such misconduct affected the verdict.  

Breckenridge, 150 Wn.2d at 203.

       "[T]he consideration of novel or extrinsic evidence by a jury is misconduct 

and can be grounds for a new trial."  State v. Balisok, 123 Wn.2d 114, 118, 866 

P.2d 631 (1994).  Evidence is "novel or extrinsic" if it is wholly outside the 

evidence received at trial, and thus not subject to objection, cross-examination, 

explanation, or rebuttal by either party.  Balisok, 123 Wn.2d at 118; Richards, 59 

Wn. App. at 270-71.  "Jurors may, however, rely on their personal life experience 

to evaluate the evidence presented at trial during the deliberations." 

                                         - 14 - 

No. 65801-8-I/15

Breckenridge, 150 Wn.2d at 199 n.3; see also State v. Tandecki, 120 Wn. App. 

303, 311, 84 P.3d 1262 (2004), aff'd, 153 Wn.2d 842, 109 P.3d 398 (2005).  "In 

determining whether a juror's comments constitute extrinsic evidence rather than 

personal life experience, courts examine whether the comments impart the kind 

of specialized knowledge that is provided by experts at trial." Breckenridge, 150 

Wn.2d at 199 n.3. Moreover, even where such specialized knowledge is 

introduced, the evidence is not extrinsic if the juror's knowledge was fully 

disclosed during voir dire.  Richards, 59 Wn. App. at 274 (no novel evidence 

introduced where nurse's background was disclosed on voir dire and her 

medical knowledge was naturally brought into the deliberations).  

       Where extrinsic evidence has been introduced during deliberations, the 

trial court must make "an objective inquiry into whether the extrinsic evidence 

could have affected the jury's determination, not a subjective inquiry into the 
actual effect of the evidence on the jury."6  Kuhn v. Schnall, 155 Wn. App. 560, 

575, 228 P.3d 828, review denied, 169 Wn.2d 1024 (2010).  A new trial must be 

granted if there is any reasonable doubt regarding the effect of extrinsic 

evidence on the jury.  Kuhn, 155 Wn. App. at 574.  However, the prejudicial 

effect of extrinsic evidence is a question properly determined in the sound 

discretion of the trial court.  Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 

       6 An objective inquiry is required because the actual, subjective effect of the extrinsic 
evidence inheres in the verdict.  State v. Briggs, 55 Wn. App. 44, 55, 776 P.2d 1347 (1989).  
The individual or collective thought processes leading to a verdict cannot be used to impeach a 
jury verdict. State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988).  Accordingly, affidavits of 
jurors may be considered only to the extent that they do not attest to matters inhering in the 
verdict. Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651, 379 P.2d 918 (1962).

                                         - 15 - 

No. 65801-8-I/16

137, 750 P.2d 1257, 756 P.2d 142 (1988).

       Metro asserts that two jurors committed misconduct by testing the 

slipperiness of the yellow Nora material on Metro bus stairs during their 

commutes to the courtroom.  Juror Brawley testified by declaration that, on a 

rainy day, he "had stopped at the top of the rear stairs prior to exiting the bus" 

and had "test[ed] the slipperiness of the yellow nose strip by scuffing my shoe 

over the top of this yellow nose strip." CP at 154.  He testified that he would 

have "likely fallen if I wasn't extra careful when getting off the bus that morning."

CP at 154.  However, Juror Brawley testified that he did not share this 
experience until after the verdict had been delivered.7 Furthermore, he 

explained that he had only tested the yellow strip "to ensure that [he] didn't fall

and end up like Mr. Knappett."  CP at 198.  

       The trial court determined, first, that there was no juror misconduct and,

second, that even if misconduct did occur, it had no effect on the verdict.  

       Neither determination by the trial court was remotely unreasonable.  The 

court ruled that Juror Brawley's actions were not misconduct because Metro was 

well aware that jurors would come into contact with yellow nosing strips as part 

of their everyday experiences during the trial.  As the court explained, jurors 

were provided with Metro bus passes and encouraged to ride the buses to and 

from the courthouse.  The court noted that there was "no request by Metro that 

       7 When he described this experience to other jurors following the trial, a second juror 
described a similar experience.  

                                         - 16 - 

No. 65801-8-I/17

we take away their bus passes and give them parking instead."  RP (July 2, 

2010) at 12.  Instead, as the trial court correctly observed, Metro was fully aware 

that jurors would come into contact with the yellow nosing strips: 

       Everybody knew they were going to be on those buses.  No one 
       suggested, and certainly I wouldn't have told them, you know what, 
       when you get on those buses, jump across the steps, don't step on 
       them, jump from the curb to the top landing so that you never touch 
       the yellow strips, or close your eyes when you get on those buses. 
       Nobody suggested that.  It would have been absurd. Everybody 
       knew they were going to have to step on those strips getting on 
       and off the buses. 

RP (July 2, 2010) at 13.  Moreover, given the extensive testimony regarding the 

slipperiness of the steps on Metro buses, it is unsurprising that two jurors sought 

to exercise caution when approaching the steps.  Indeed, Juror Brawley 

explained that he "was being exceptionally careful because it was raining and 

we had been told that part of the stair is slippery when it's wet."  CP at 198.  As 

the trial court recognized, such actions do not constitute the deliberate collection 

of external evidence:

       It's not the same as . . . taking the time to go to the scene of an 
       accident, investigate the scene of an accident.  They were on the 
       bus.  We knew they were on the buses.  We in fact gave them 
       permission and tickets to get on the buses going into the trial. . . . 
       Metro could have . . . suggested an alternative [but] didn't. 

RP (July 2, 2010) at 16.  

       As the trial court pointed out, Metro possessed all the information 

necessary to conclude that jurors might encounter the yellow nosing strips as 

part of their everyday experience during the trial. As in Richards, the jurors 

                                         - 17 - 

No. 65801-8-I/18

would naturally bring this knowledge with them into deliberations.  59 Wn. App. 

at 274.  No juror caused these experiences to be a subject of discussion during 

deliberations.  Because these common experiences cannot be deemed to be

extrinsic evidence, the trial court did not abuse its discretion by determining that 

no misconduct had occurred.

       Similarly, the trial court did not abuse its discretion by determining that 

the jurors' conduct did not objectively affect the verdict. The court found that, 

because Juror Brawley's observations were consistent with the uncontroverted 

evidence adduced at trial, his conduct could not have prejudiced Metro's case.  

The trial judge explained that Metro's defense was not based upon proving that 

the yellow strip was not dangerously slippery when wet:

              My judgment, however, is the case was not defended on the 
       basis of slipperiness of the step. It was defended on the basis that 
       when Mr. Knappett was approached by the first aid units, he didn't 
       mention the bus either time.  That was the heart of the defense 
       case.  He never said he slipped on the bus. So the case was 
       defended on the fact that either Mr. Knappett was misrepresenting 
       or misperceiving what had happened. That was the heart of the 
       defense. It had nothing to do with whether the step was slippery or 
       not. I know it was in there.  My judgment, having tried the whole
       case, is it was not a major part of the defense.  

RP (July 2, 2010) at 14.  In fact, Metro introduced no evidence to contradict Dr. 

Sloan's determination that the yellow strip became dangerously slippery when 

wet.  Metro called no witnesses to refute Dr. Sloan's testing methods or to 

question his conclusions.  Nor did Metro seek to undermine Dr. Sloan's findings 

during its cursory cross-examination of the doctor.  Indeed, at no point during the 

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No. 65801-8-I/19

trial did Metro argue to the jury that the yellow nosing strip was not slippery 

when wet.  

       Nevertheless, Metro contends that the slipperiness of the yellow nosing

strip was a central part of the defense's case because Metro had always 

contested "whether that yellow strip was wet enough to be . . . slippery."  Br. of 

Appellant at 7. However, Juror Brawley's observations were irrelevant to this 

issue.  At the time he scuffed his shoe across the yellow nosing strip, the strip 

was already wet, and his "test" was limited to confirming that the yellow strip 

was, in fact, slippery under these conditions.  This conclusion, of course, would 

have no bearing on whether the strip was wet at the time of Knappett's fall.  

Instead, Juror Brawley's observations were merely consistent with the 

uncontroverted evidence adduced at trial.  There is no juror misconduct,

warranting a new trial, where "the results of [a jury] test conformed to the 

uncontroverted testimony introduced at trial."  Tarabochia v. Johnson Line, 

Inc., 73 Wn.2d 751, 754, 440 P.2d 187 (1968).  The trial court's determination 

that the jurors' conduct had no effect on the verdict was not based on untenable 

grounds.  The court did not abuse its discretion by denying Metro's motion for 

new trial. 

       Affirmed.

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No. 65801-8-I/20

We concur:

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